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In Re Cell Tower Litigation

August 27, 2011


The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge



On August 5, 2011, the Court issued a decision on the parties' cross-motions for summary judgment in Case No. 07cv399 BEN (WVG). (Dkt. No. 267.) The Court's decision disposed of all claims except for three claims under the Telecommunications Act ("TCA") - Claims V, VI, and VII - because the City did not move for summary judgment on those three claims. For the reasons discussed below, the Court GRANTS the City's successive motion for summary judgment.


The relevant background is outlined in the Court's August 5, 2011 decision.


"[D]istrict courts have discretion to entertain successive motions for summary judgment." Hoffman v. Tonnemacher, 593 F.3d 908, 911 (9th Cir. 2010). "[A]llowing a party to file a second motion for summary judgment is logical, and it fosters the 'just, speedy, and inexpensive' resolutions of suits." Id. (quoting FED. R. CIV. P. 1).

Summary judgment should be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the moving party meets this burden, the burden then shifts to the opposing party to set forth specific facts showing that a genuine issue remains for trial. Id. "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting FED. R. CIV. P. 1)).

"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247--48. Evidence raises a genuine issue of material fact if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 252.

"Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). "A 'justifiable inference' is not necessarily the most likely inference or the most persuasive inference. Rather, 'an inference as to another material fact may be drawn in favor of the nonmoving party . . . if it is rational or reasonable.'" United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (quoting T.W. Elec. Serv. v. Pac. Elec. Contractors, 809 F.2d 626, 631 (9th Cir. 1987)).

I. Successive Motion

The Court finds that the City's successive motion for summary judgment is appropriate under the circumstances to achieve an efficient and final resolution of all claims in this case.*fn1 The Court has already ruled against ATC on each of these claims. Additionally, a trial on each of these claims, when the Court did not find any genuine issues of material fact, would be a waste of the parties' and the Court's resources, if the claims can be resolved without a trial. Accordingly, the Court considers ATC's three remaining claims under 47 U.S.C. § 332(c)(7): unreasonable discrimination, effective prohibition, and lack of substantial evidence.*fn2

II. TCA - 47 U.S.C. § 332(c)(7)

The TCA affirms local government zoning authority "regarding placement, construction, and modification of personal wireless service facilities." 47 U.S.C. § 332(c)(7)(A). But that authority is limited. § 332(c)(7)(B). Specifically, local governments: "shall not unreasonably discriminate among providers of functionally equivalent services," § 332(c)(7)(B)(i)(I); "shall not prohibit or have the effect of prohibiting the provision of personal wireless services," § 332(c)(7)(B)(i)(II); and any decision by a local ...

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